Susan W. v. Tara W. (In re Eliza W.)
| Decision Date | 07 February 2020 |
| Docket Number | No. S-18-1141.,S-18-1141. |
| Parties | IN RE GUARDIANSHIP OF ELIZA W., a minor child. Susan W., appellee, v. Tara W., appellant. |
| Court | Nebraska Supreme Court |
Jonathan Seagrass, of Legal Aid of Nebraska, for appellant.
Ashley L. Albertsen, Melissa M. Oestmann, and Jacob A. Acers, of Smith, Slusky, Pohren & Rogers, L.L.P., Omaha, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) provide specific procedures and requirements that apply in certain proceedings involving the custody and adoption of and termination of parental rights to Native American children. This case requires us to decide whether those procedures and requirements apply in a case in which a maternal grandmother sought to establish a guardianship for an Indian child over the objection of her daughter, the child’s mother. After interpreting the relevant statutory language, we conclude that the guardianship proceeding at issue was governed by ICWA and NICWA. In addition, we find that the grandmother did not make the showing required by ICWA and NICWA. We therefore reverse the order of the county court establishing the guardianship and remand the cause with directions to vacate the guardianship, dismiss the petition, and return custody to the child’s mother.
This case began when Susan W. filed a petition asking the Douglas County Court to appoint her as temporary and permanent guardian for her granddaughter, Eliza W. In the petition, Susan alleged that Eliza had lived with Susan and her husband, Jay W., since Eliza’s birth; that Eliza’s mother, Tara W., only intermittently resided at Susan and Jay’s home; that neither Tara nor Eliza’s father was able to meet Eliza’s financial, physical, and emotional needs; that Susan and Jay provided the primary financial, physical, and emotional support for Eliza; and that the appointment of a guardian was in the best interests of Eliza and necessary to protect and care for her. Eliza was 4 years old at the time Susan filed the petition.
On the same day Susan filed the petition for guardianship, she filed an ex parte application requesting that the county court immediately appoint her as temporary guardian until a hearing could be held on the matter. The court granted Susan’s application and appointed her as temporary guardian and conservator for Eliza.
Susan later filed an amended petition. The amended petition contained many of the same allegations as the original, but also included an assertion that Jay "is a registered member of the Muscogee Creek Indian Nation" and that Eliza "is subject to [ICWA]."
At her first appearance in a hearing in this matter, Tara, representing herself, objected to the appointment of Susan as guardian.
Tara requested on several occasions that she be appointed counsel. Tara initially filed a form document used to request appointed counsel in custodial sanction cases. On that form document, Tara asserted that she was entitled to appointed counsel under a provision of NICWA, Neb. Rev. Stat. § 43-1505(2) (Reissue 2016), that she had no forms of income, and that she received public assistance in the form of food stamps and Medicaid.
Tara later submitted a letter to the court in which she requested appointment of counsel under § 43-1505(2). Documents indicating that Tara was a citizen of the Muscogee (Creek) Nation and that she was eligible to receive food stamps and Medicaid were attached to the letter.
Tara again requested that she be appointed counsel at a hearing prior to trial. She again asserted an entitlement to counsel under § 43-1505(2) on the grounds that Susan’s petition was a "removal, placement, or termination proceeding" for purposes of that statutory provision and that Tara was indigent.
A discussion between the court and Tara regarding her entitlement to counsel under § 43-1505(2) followed. The court expressed skepticism about whether Tara was entitled to appointed counsel under § 43-1505(2) in a guardianship proceeding. The court also suggested that Tara had not followed the proper procedure for requesting appointed counsel. The court did not expressly rule on Tara’s requests for counsel, and Tara continued to represent herself at all proceedings in the county court.
At the trial on Susan’s petition, Susan testified that Eliza had lived her entire life in Susan and Jay’s home. She testified that although Tara also lived there and provided Eliza with some care, Tara had on prior occasions left the home without notice, leaving Susan to care for Eliza. Susan testified that she and Jay were Eliza’s primary caregivers and that Tara functioned more like a babysitter for Eliza. Susan also testified to her belief that Tara previously had problems with substance abuse and that she exposed Eliza to individuals with criminal backgrounds.
Jay also testified and generally agreed with Susan’s testimony. In addition, he testified that he was of Native American descent and that through his lineage, Eliza was a member of the Muscogee (Creek) Nation Tribe.
Susan called a physician to testify. He testified that he was friends with Susan and Jay and had served as their family physician. He also testified that his daughter had served as Eliza’s babysitter. Much of the physician’s testimony was based on his observations of members of Eliza’s family outside of a physician-patient relationship. Although he testified that based on his observations, Susan was Eliza’s primary caregiver, he testified that he had observed Tara and Eliza together and believed they had a good relationship, loved each other, and interacted well. When asked whether he would have any concerns if the court did not appoint Susan as guardian, he testified that he believed Susan and Jay were providing Eliza with the proper physical and emotional support and that he did not "know that Tara would be able to do that."
Tara testified in her own behalf. She testified that when Eliza was born, Tara was working full time and was Eliza’s primary caregiver. She testified that she was diagnosed with viral meningitis in November 2016 and that she continued to suffer from associated headaches at the time of trial. She testified that after her medical condition began to improve, she enrolled in college, and that she, Susan, and Jay began to share duties caring for Eliza. Tara testified that her relationship with her parents began to sour in 2018. At that point, she decided that she and Eliza should move out of her parents’ home. Tara then lived with Eliza at the home of a friend, Mark Keller, for a time. She also informed her parents she was considering moving to Oklahoma with Eliza.
Tara also called Keller as a witness. Keller testified that Tara and Eliza had lived at his home with his four children. Keller testified that he did not believe there was any reason Eliza would be harmed while staying at his home. Keller admitted on cross-examination that he had previously been convicted of felony drug possession charges.
In closing argument, Tara argued that Susan had not made the showing necessary for the appointment of a guardianship under ICWA and NICWA. In particular, she emphasized that ICWA and NICWA required expert testimony proving Tara’s continued custody of Eliza was likely to result in serious emotional or physical damage to Eliza and that no such testimony had been provided.
At the conclusion of the evidence at trial, the county court stated on the record that it had found a sufficient basis for the appointment of Susan as Eliza’s guardian. It stated that the evidence showed that Tara was not a "fit and proper person to care for Eliza; that she is unable, at this time, to provide a safe and secure environment for her." In what was presumably a reference to Tara’s arguments regarding the applicability of ICWA and NICWA, the court also stated that the request for a guardianship was "not a removal proceeding" or "a foster care placement proceeding." The court later entered a written order, which did not mention ICWA or NICWA, appointing Susan as guardian for Eliza.
Tara timely appealed.
Tara assigns, condensed and restated, that the district court erred (1) by failing to apply ICWA and NICWA to the guardianship proceeding and (2) by concluding that Tara was unfit to care for Eliza or that she had forfeited her right to custody.
Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016 & Cum. Supp. 2018), are reviewed for error on the record. In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019). When reviewing a judgment for errors on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. An appellate court, in reviewing a judgment for errors on the record, will not substitute its factual findings for those of the lower court where competent evidence supports those findings. Id.
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019).
Tara argues that the county court did not comply with ICWA and NICWA when it appointed Susan as guardian for Eliza. The parties dispute, however, whether ICWA and NICWA apply in these circumstances. We therefore begin our analysis with that question.
We have previously described ICWA and NICWA as generally providing "heightened protection to the rights of Indian parents, tribes, and children in proceedings involving custody, termination, and adoption." In re Adoption of Kenten H. , 272 Neb. 846, 853, 725 N.W.2d 548, 554 (2007). Tara argues, as ...
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